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NLRB Supports Obscene Facebook Vulgarity, Punishes Common Sense Response

The National Labor Relations Board's decision in Pier Sixty, LLC, 362 NLRB 59 (2015), will be startling to many managers struggling to maintain civility in the workplace. Increasingly, supervisors and human resource departments are expected to behave like lawyers and to ignore common sense for what should be routine discipline decisions.

Although union activity is on the decline in most private sector industries, the catering company Pier Sixty was recently faced with an effort to unionize its New York operations. Two days before the employees were scheduled to vote on the EGU union petition, and just after receiving a reprimand to "stop chitchatting" on the job, a pro-union employee spent his work break updating his Facebook page with a foul-mouthed post about his boss:

"Bob is such a NASTY MOTHER F[***]ER don't know how to talk to people!!!!!! F[***] his mother and his entire f[***]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"

Not surprisingly, this eloquent statement led to the employee's termination for violation of a written Pier Sixty company policy that generally prohibited harassment (but alas, not the flagrant overuse of exclamation points).

The employee filed an unfair labor practice charge under Sections 8(a)(1) and (3) of the National Labor Relations Act. According to the Act, employers generally cannot discipline employees for engaging in collective or concerted activity, including comments regarding terms and conditions of employment. An exception exists for employee behavior that is particularly "outrageous," which the employer raised as a defense in this instance.

The Board determined that the employee's obscene Facebook comments constituted protected, concerted union activity and that the employer had therefore violated the statute. In part, the Board's decision was based on the employer's practice of ignoring less vulgar language by employees in the past; the fact that the employee was engaged, however inappropriately, in union activity; and the lack of a specific prohibition against profanity in the employer's harassment policy.

For union and non-union employers alike, the Board has recently taken a strident pro-union stance, favoring employee criticism of nearly any stripe and limiting employer policies that would squelch employees who voice union support. Especially in the realm of social media, the Board has made clear through a series of decisions that employers must tread lightly when faced with public criticism about work conditions, personalized attacks on supervisors, and even (now, with this case) vulgar insults directed at supervisors' mothers.

In this atmosphere where basic common sense and civility has been politicized and turned upside down, employers are cautioned to be consistent in enforcing profanity policies, to train supervisors about avoiding perceived retaliation for even inappropriate union conduct, and to get a labor attorney involved before taking disciplinary action when social media is involved.

By Marc L. Fleischauer

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